Macpherson v Rio Tinto Coal Australia Pty Ltd

[1] The applicant is employed by the respondent at its Tarong coal mine. His duties include driving graders, loaders and trucks. Last December he developed an aggravation of a lower back injury which caused him to be absent from work. He was still off work on 11 February of this year when his doctor issued a certificate that he would be fit to return to work on the following day. The respondent does not accept that opinion. Expressing a belief that the applicant is not fit to resume his duties, the respondent has taken steps to have the applicant assessed by the "nominated medical advisor" under the Coal Mining Safety and Health Regulation 2001 (Qld) ("the Regulation"). The applicant objects to his undergoing that assessment. He says that the circumstances do not engage the relevant sections of the Regulation. In particular he says that the respondent's notice, which was given purportedly under s 49(2) of the Regulation, was of no effect.

[2] The principal question involves the interpretation of s 49(2). The applicant seeks a declaration that upon the proper construction of s 49(2), the notice given is not a notice that can validly be issued under that section. As filed, the application sought orders under s 30 of the Judicial Review Act 1991 (Qld) on the basis that the respondent's decision to require him to undergo the assessment was a decision to which that Act applies. The respondent disputed that it was such a decision, denying that it was a decision of an administrative character made under an enactment.[1] At the hearing however, the applicant pressed only his claim for declaratory relief.

[3] The Regulation is made pursuant to the Coal Mining Safety and Health Act 1999 (Qld) ("the Act"). The objects of the Act are to protect the safety and health of persons at coal mines and persons who may be affected by coal mining operations and to require that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level.[2] Section 7 of the Act summarises the means by which those objects are to be achieved, which include the provision for "safety and health management systems at coal mines to manage risk effectively", as well as "providing for the health assessment of coal mine workers." Section 18 defines the term "risk" to mean "the risk of injury or illness to a person arising out of a hazard" and the term "hazard" is defined by s 19 as "a thing or a situation with potential to cause injury or illness to a person." Section 29 provides that for risk from coal mining operations to be at an acceptable level, the operations must be carried out so that the level of risk from the operations is within acceptable limits and as low as reasonably achievable. Section 30 provides that to achieve an acceptable level of risk, "management and operating systems" must be put in place for each coal mine and those systems must incorporate "risk management elements and practices" which will, amongst other things, "monitor levels of risk". By s 31, if there is "an unacceptable level of risk to persons at a coal mine", then the Act requires that "persons be evacuated to a safe location; and ... action be taken to reduce the risk to an acceptable level." imposes certain obligations on coal mine operators, which include the appointment of a site senior executive for the mine and ensuring that this person develops and implements a safety and health management system. In turn, requires a site senior executive to develop and implement that system. There is further provision for what is required of a safety and health management system in , by which it is to be a system "that incorporates risk management elements and practices that ensure safety and health of persons who may be affected by coal mining operations."

[4] Section 49 of the Regulation is within Division 2 which is headed "Coal mine workers' health scheme". Within that Division, s 45 requires an employer to appoint a doctor as the "nominated medical advisor" to carry out, supervise, and report on, health assessments under this Division. Section 46 obliges an employer to ensure that a health assessment is carried out for each person who is to be employed, or is employed, as a coal mine worker. That assessment is to be carried out by or under the supervision of the nominated medical advisor:

s 46(2). Section 46(4) requires a health assessment to be carried out as follows:

"(a) Before the person is employed as a coal mine worker; and

(b)

If the nominated medical advisor decides the assessment is necessary after being given a notice under s 49(3) - periodically, as decided by the nominated medical advisor; and

(c)

Otherwise, periodically, as necessary, but at least once every 5 years."

[5] By s 47, the employer must arrange and pay for a health assessment mentioned in

s 46. It also requires the nominated medical advisor to give a health assessment report to the employer and to the relevant employee. Section 48 applies if the employer is given such a report and it shows that the worker is unable to carry out the worker's tasks at the mine "without creating an unacceptable level of risk." It provides that before taking action to terminate the worker's employment or to demote the worker, the employer must give him an opportunity to undergo a further assessment by another doctor.

[6] Then comes s 49 which is as follows:

"49 Monitoring for workers' exposure to hazards

(1) A coal mine's safety and health management system must provide for periodic monitoring of the level of risk from hazards at the mine that are likely to create an unacceptable level of risk.

(2) The system must also provide for notice of any appreciable increase in the level of risk to a coal mine worker at the mine to be given to the worker's employer.

(3) An employer who is given a notice under subsection (2) must give a copy of the notice to the employer's nominated medical adviser.

(4) An employer must ensure that, if a coal mine worker employed by the employer is exposed to a hazard at a coal mine that may increase the level of risk to the worker, the worker's exposure to the hazard is periodically monitored to assess the level of risk to the worker.

risk means a risk likely to affect a person's health."

[7] The applicant presented for work last December complaining that he had woken up with a sore back and that he did not think he would be able to operate any machinery. On that day he saw his doctor, Dr P S Ruscoe, who certified that he was unfit for work for at least 48 hours. By early January, Dr Ruscoe had certified him as fit for light duties but the respondent said that there was no such work available. When telephoned by the mine's operations manager, Mr Hicks, on 14 January Dr Ruscoe said that the applicant was unfit to drive trucks and that even driving a car for an hour was too much for him. On 25 January, Dr Ruscoe certified the applicant as totally incapacitated for work until 25 February. But when Mr Hicks spoke to the applicant on 8 February, he was told that a specialist had cleared the applicant for a "full return to work" on 9 February.

[8] On 10 February Mr Halfpenny, who is the general manager at the mine and the site senior executive, wrote to the applicant requesting that he be seen by the nominated medical advisor and expressing concern that the applicant could be injured if he returned to normal duties without being fully fit. In the next week or so there were several discussions between the applicant and representatives of the respondent, many of which also involved representatives of the applicant's union. The applicant's claim for workers' compensation payments had been denied on the basis that his back condition was not work related. The parties discussed that matter as well as whether the applicant should be assessed by the nominated medical advisor, who is Dr Jonsson. The respondent was pressing for the applicant to be assessed by her, which was resisted by the applicant and the union representatives on the basis that the respondent had no right to require it.

[9] On 21 February, Mr Halfpenny wrote to the applicant, saying that if the applicant did not agree to be assessed by Dr Jonsson then he would "take the necessary steps to formally request a determination by [Dr Jonsson] as to whether it is necessary to conduct an assessment." Then on 24 February he wrote to the General Manager Human Resources of the respondent, purportedly giving notice pursuant to s 49(2) of the Regulation and stating his belief "that there is an appreciable increase in the level of risk to [the applicant]". He described the demands of the applicant's work at the mine in driving over unsealed roads and performing tasks such as lifting and bending, and he referred to something of the applicant's history of back injury going back to 1988. His letter concluded with a statement that he believed that the applicant's "physical condition has increased the level of risk to him of driving on the mine roads and performing tasks involving lifting, reaching and bending."

[10] On the same day, Mr Hicks, on behalf of the respondent as the employer in receipt of Mr Halfpenny's notice, gave a copy to Dr Jonsson as the nominated medical advisor, purportedly pursuant to s 49(3) of the Regulation. Dr Jonsson replied on the same day, writing that after perusing the documentation sent to her by the respondent, she was of the opinion "that there is an appreciable increase in the level of risk to [the applicant] to sustain a further injury to his back in his role as a truck and shovel operator" and that it would be in his best interests to have a full assessment performed by a specialist and an occupational therapist. On 25 February, the respondent wrote to the applicant instructing him to attend Dr Jonsson's surgery "to discuss with her the steps forward and participate in undertaking this assessment." The applicant's response was to file these proceedings on 25 February.

The respondent's notice - was it under s 49?

[11] It is plain from the respondent's purported notice that what was said to be the increase in the level of risk was not attributed to any change to what might be described as the mine environment. There was no suggestion that the mine or any part of it, or any operation at the mine had become more hazardous. As mentioned, s 18 of the Act defines "risk" as a risk "arising out of a hazard" and s 19 defines a "hazard" as a thing or situation with potential to cause injury or illness to a person. It is not suggested that there has been any change in relation to any thing or situation at this mine. According to the notice, the increase in the level of risk is one which is specific to the applicant. The respondent says that the level of risk is increased in his case, because he is at more risk of a back injury in his present physical condition than would be the case if he had experienced no back problems. The increase in the level of risk is said to be measured by the difference between the risk of his being injured and the risk facing someone who is completely fit and has been symptom free.

[12] The applicant's case is that the respondent has thereby misinterpreted s 49(2). He argues that the change in the level of risk must come from something in the mine environment or the nature of an activity at the mine, rather than simply from some condition of the health of a particular employee.

[13] Section 49(2) must be interpreted in the particular context of s 49, as well as in the wider context of the Regulation and the Act. Section 49(1) requires the mine's safety and health management system to provide for periodic monitoring. What is to be monitored is the "level of risk from hazards at the mine that are likely to create an unacceptable level of risk". For s 49, the term "risk" is defined by s 49(5) to mean a risk likely to affect a person's health. So the monitoring of the level of risk is the monitoring of something likely to affect a person's health, which would appear to be distinct from the monitoring of the person's health itself. And the risk which is to be monitored is the risk "from hazards at the mine".

[14] The level of risk from a hazard at the mine could be greater for one individual than for another, but as I read s 49(1), it does not require the monitoring, for each and every coal mine worker, of the level of risk from hazards at the mine specifically by reference to that worker's individual health and fitness. In particular, it does not require the periodic monitoring of each worker's health. If it did require each worker's health to be periodically monitored, it would impose another regime for health assessment beyond that required of an employer by s 46 of the Regulation and, in particular, by s 46(4). And as the responsibility for the implementation of a coal mine's safety and health management system is upon the site senior executive,[3] s 49(1) would impose an obligation for the periodic health assessment of workers upon a party who might be distinct from the workers' employer. In the present case, it would appear that the mine operator, which appoints the site senior executive,[4] is also the worker's employer.

[15] In summary, s 49(1) requires the periodic monitoring of the level of a certain level of risk, which is the level of risk from hazards of the mine. That involves a monitoring of the facts and circumstances which represent hazards at the mine, and a monitoring of changes in those facts and circumstances as those changes could affect the level of risk from the hazards.

[16] Like s 49(1), s 49(2) prescribes an element of a mine's safety and health management system. It requires the system to provide for notice of any appreciable increase in the level of risk to a coal mine worker at the mine. This requirement cannot be read in isolation. It should be interpreted in the context of the requirement for periodic monitoring prescribed by the immediately preceding subsection. These are elements of one system by which the detection of an increase in risk is to be reported. It is logical to treat the level of risk referred to in one subsection as the same as that referred to in the other. Section 49(2) is not confined to an increase in the level of risk of which the site senior executive, as responsible for the implementation of the system, is then aware. The apparent intent is that the executive's awareness will come from appropriate monitoring. Because the particular health of an individual worker is not to be monitored under

s 49(1), there is no requirement in s 49(2) for notification of the risk to a particular worker which comes from simply a change to his own health, or from that health putting him at relatively higher risk of injury.

[17] The interpretation for which the applicant contends is also consistent with s 49(4) which imposes an obligation upon the employer, as distinct from prescribing an element of a mine's safety and health management system. It requires the employer to ensure that if a coal mine worker is exposed to a hazard that may increase the level of risk to the worker, the worker's exposure to the hazard is periodically monitored to assess that level of risk. Again, what is to be monitored are the facts and circumstances of a hazard and an exposure to it, and in turn the potential from some change in those facts and circumstances for an increase in the level of risk. The monitoring required of the employer is specific to the exposure to the hazard of its employee, and focuses upon the hazard to which the employee is exposed. The monitoring required by s 49(1) is concerned with the level of risk from hazards to all workers at the mine. But in each case, the monitoring is of the mine environment and its operations.

[18] A copy of a s 49(2) notice must be sent to the nominated medical adviser by the employer under s 49(3) who, pursuant to s 46(4), may then decide what assessment is necessary. The respondent argues that a s 49(2) notice can thereby "trigger a health assessment", and that this indicates that a reason for a s 49(2) notice could be the health condition of a particular worker. However, the nominated medical adviser is to decide, pursuant to s 46(4)(b), what periodic assessment is necessary. Section 46(4)(b) recognises that an increased level of risk could warrant a more frequent monitoring of the health of the relevant worker or workers. The fact that the decision is one as to how often a worker or workers should be assessed is significant in the interpretation of s 49. The evident intent of s 46(4) and s 49 is to ensure that any changes to the extent of risk from a hazard in the mine or its operations will result in a more frequent monitoring of worker's health if the nominated medical adviser considers it necessary. The frequency of health assessment can be thereby be dictated by medical opinion, whereas the frequency of the monitoring of the level of risk, pursuant to , is according to the safety and health management system as implemented by the mine's operation through its site senior executive. A notice under would trigger a health assessment in the sense that the nominated medical adviser could decide that a change in conditions warrants health assessments to be conducted more often.

[19] In my conclusion there is not an "appreciable increase in the level of risk to a coal mine worker" involved in a case such as the present, where the only facts and circumstances said to result in an "increase" are those which are specific to the health of a particular worker. The level of risk is not increased in such a case, at least in the sense in which the level of risk is referred to in s 49(1) and s 49(2). It follows that the notice purportedly given under s 49(2) was not one for which that section provided. Nor was it a notice to be copied to the employer's nominated medical adviser pursuant to s 49(3).

Section 46

[20] It also follows that the nominated medical advisor, Dr Jonsson, did not receive a notice under s 49(3) so as to empower her pursuant s 46(4)(b) to decide what periodic assessment was necessary.

[21] Subject to arguments in relation to discretionary considerations, the applicant has established an entitlement to declaratory relief.

[22] In both written and oral submissions, the respondent argued that the court should not intrude into the regime of which s 49 is a part, without "a proper legal basis for doing so". It was said that the court should not substitute its own opinion for that of Mr Halfpenny, on the question of whether there was an appreciable increase in the level of risk to the applicant, or as Mr Halfpenny described it in his affidavit, a heightened risk of injury. It is said that there was no challenge to the correctness of Mr Halfpenny's opinion. However, Mr Halfpenny has addressed a question which is different from that which is relevant for the purposes of s 49(2). There is nothing in the grant of such declaratory relief as the applicant seeks which involves the substitution of the court's view for that of Mr Halfpenny, on the factual question of whether the applicant is at more risk of sustaining a back injury than are other workers.

[23] The respondent says that the relief sought has no utility, because as the applicant's employer, it could decide that he should be assessed pursuant to s 46(4)(c). This paragraph, like s 46(4)(b), is in terms of a periodic assessment. If and when the respondent, purportedly under s 46(4)(c), decides that the applicant should be assessed at certain intervals, there may be a further dispute to be resolved. The potential for a decision under s 46(4)(c), which may or may not be disputed, does not make the present dispute inconsequential.

[24] It was also suggested that declaratory relief should be refused, because the provision of notices purportedly pursuant to s 49(2) and

s 49(3) in themselves have no consequence upon the applicant's employment. It was said that depending upon future events, the notices may have no practical consequences for his employment. Nevertheless there is a genuine dispute between the parties. By the respondent's letter of 25 February 2005 to the applicant, the respondent purported to instruct the applicant to attend Dr Jonsson's surgery to participate in the assessment. Consistently with that instruction, the respondent is likely to contend that a refusal to participate has consequences for the applicant's employment, unless this dispute is resolved, as it should be, by appropriate declaratory relief.

[25] It will be declared that upon the proper construction of s 49(2) of the Regulation, the respondent's notice dated 24 February 2005 in relation to the applicant was not a notice which the respondent was permitted or obliged to give according to that section. It will be further declared that upon the proper construction of s 46 and

s 49 of the Regulation, the respondent's notice given to Dr Jonsson dated 24 February 2005 was not a notice given according to s 49(3) so as to empower Dr Jonsson as a nominated medical advisor to make a decision pursuant to s 46(4)(b).

[1] Judicial Review Act 1991 (Qld), s 4.

[2] Section 6.

[3] Sections 41 and 42 of the Act.

[4] Section 41(1)(d).